deed, but to enforce the title obtained through the sheriff's deed. Therefore the statute of limitations which obtained as to setting aside a fraudulent deed was not applicable.

And as the time prescribed by the statutes for the recovery of land had not run, the possession of the party who claimed under Poag's deed was in fact the possession of judgment creditor, which had ripened by virtue of the satisfaction of his debt through the sheriff's deed. Poag's deed, being void from the begining, neither he nor his assigns, could give any right to the possession, so long as the judgment creditor's right to have the property sold to satisfy the debt remained. The debtor's right was one which included the right to give possession to such person as the property might be sold, and as, in this instance, the judgment creditor bought in the property at the sheriff's sale, he bought the right of possession, therefore, whoever had possession held for the purchaser at the sheriff's sale.

But having claimed under mesne conveyances from Poag and having set up a right to the possession on this account, the plaintiffs reply that the defendant claimed from a void deed, which is not an action to set aside a deed, but a mere statement of a right to introduce evidence to protect against an attack made by the defendant and gave notice to the defendants of the course to be pursued.

This view is sustained by Owen v. Dixon, 17 Conn. 492; Muse v. Yarbrough, 11 La. 530; Spindler v. Atkinson, 3 Md. 409; Trask v. Green, 9 Mich. 358; Thomason v. Neeley, 50 Miss. 310; Shaw v. Millsaps, 50 Miss. 380.

A class of cases, which is in a line running with the above, is that which holds that a judgment creditor may proceed to a sale on execution of the land of the debtor fraudulently conveyed, without first bringing suit to set aside the conveyance. Hayes v. Johnson, 6 D. C. 174; Willard v. Masterson,160 Ill. 443, 43 N. E. Rep. 771; Scott's Ex'r. v. Scott, 85 Ky. 385, 3 S. W. Rep. 5 98, 5 S. W. Rep. 423; Smith v. Ried, 134 N. Y. 568, 31 N. E. Rep. 1082; Lynn v. Le Gierse, 48 Tex. 138.

For cases in point see also Vol. 24, Cent. Dig Fraudulent Conveyances, secs. 658-673.

For the doctrine which holds that the reply, such as made in the principal case, amounted to the same thing as a suit to set aside the conveyance, consequently was barred by the statute of limitation relating to the time actions should be brought, to set aside fraudulent conveyances, see dissenting opinion of Simpson, Ch. J., in Amaker v. New (S. Car.), 11 S. E. Rep. 38 6. 8 L. R. A. 687, and cases therein cited.

WEEKLY DIGEST.

Weekly Digest of ALL the Current Opinions of ALL the State and Territorial Courts of Last Resort, and of all the Federal Courts,

IOWA.

ARKANSAS...23, 49, 80, 85, 86, 92, 99, 102, 118, 135, 149, 172, 177 CALIFORNIA. .148, 163 COLORADO .52, 56, 59, 91, 113, 142, 167, 173 ..143 .111, 112, 119, 134 KENTUCKY, 44, 47, 78, 77, 78, 81, 82, 106, 107, 121, 126, 127, 157, 166, 174 MISSOURI, 5, 46, 50, 70, 84, 88, 89, 98, 124, 125, 136, 138, 141, 153, 160, 165, 169

KANSAS.

UNITED STATES C. C., 9, 10, 45, 93, 96, 104, 121, 130, 133, 140, 145, 171

U. S. C. U. OF APP..1, 13, 16, 18, 29, 37, 39, 40, 74, 94, 95, 131, 161, 168

UNITED STATES D. C. 17, 19, 20, 21, 24, 25, 28, 30, 31, 32, 33, 34, 35, 36, 39, 53, 54, 101, 162

1. ADMIRALTY-Joinder of Libelants in Suits in Rem.A court of admiralty may properly permit a large num ber of passengers to join in a single líbel in rem against the vessel to recover for injuries alleged to have been sustained by each from common causes.-The Oregon, U. S. C. C. of App., Ninth Circuit, 133 Fed. Rep. 609.

2. ANIMALS--Tortious Killing of Domestic Animal.In a prosecution for killing a domestic animal, direct proof of death by violence established the corpus delicti. -Stockbridge v. Territory, Okla., 79 Pac. Rep. 753.

3. APPEAL AND ERROR-Amendment of Transcript.Motion for leave to withdraw the certificate of the clerk to the transcript of the record to amend it comes too late, when more than one year has elapsed since the judgment.-Walcher v. Stone, Okla., 79 Pac. Rep. 771.

4. APPEAL AND ERROR-Res Judicata.-The trial court's finding that complainant had not established his case held res judicata, if the court's holding was correct.Campbell v. Flannery, Mont., 79 Pac. Rep. 702.

5. ARBITRATION AND AWARD-Rehearing. - Arbitrators, having delivered an award, held without jurisdiction to open the case and make a new award without consent of both parties. -Brown v. Durham, Mo., 85 S. W• Rep. 120.

6. ASSIGNMENTS FOR BENEFIT OF CREDITORS - Removal of Assignee.-Though an order discharging an assignee for the benefit of creditors was obtained by fraud, it protected him in an action against him by his successor for conversion.-Rochford v. Doty, Wash., 79 l'ac. Rep. 782.

7. BAIL-Appeal from Commitment to Reform School. -Under Ballinger's Ann. Codes & St. §§ 2726, 6530, an infant, on appealing from a conviction and commitment to the reform school, held entitled to be admitted to bail.-Packenham v. Reed, Wash., 79 Pac. Rep. 786.

8. BAIL-Scire Facias.-A scire facias in proceedings on a forfeited recognizance held not defective for failure to recite "in the name of the state," as given in the form provided by Acts 1897, p. 183, ch. 47.-State v. Frankgoss, Tenn., 85 S. W. Rep. 79.

9. BANKRUPTCY-Action by Trustee to Restrain Collection of Debt.-In a suit by trustees in bankruptcy, facts held insufficient to authorize a preliminary injunčtion restraining defendants from collecting debts owing to defendant association, of which they were members. -Rowland v. Auto Car Co., U. S. C. C., E. D. Pa., 133 Fed. Rep. 835.

10. BANKRUPTCY-Application for Discharge.-On an application for a bankrupt's discharge, the burden of proof is on the opposing creditors to establish the truth of the charge set out in the specification by clear and convincing evidence.-In re Hamilton, U. S. D. C., W. D. N. Y., 133 Fed. Rep. 823.

12. BANKRUPTCY-Burden of Showing Insolvency.Where, in proceedings in bankruptcy, the respondent corporation appears by witness, is examined, and certain books are produced, but the financial condition of respondent is not shown, such acts are not a compliance with Bankr. Act, ch. 541, §3, subd. “d,” making it the duty of the respondent to testify as to all matters tending to establish solvency or insolvency.-In re American Pub. Co., Okla., 79 Pac. Rep. 762.

13. BANKRUPTCY-Business Homestead.-An order of the district judge in bankruptcy, reversing a referee's decision and holding that a deed of trust on the bankrupt's alleged business homestead was void, etc., held appealable to the circuit court of appeals.-Burow v. Grand Lodge of Sons of Hermann of Texas, U. S. C. C. of App., Fifth Circuit, 133 Fed. Rep. 708.

16. BANKRUPTCY-Counsel Fees.-It was proper for bankruptcy court to allow attaching creditor, by whose efforts property was secured for the estate, a reasonable attorney's fee.-Receivers of Virginia Iron, Coal & Coke

Co. v. Staake, U. S. C. C. of App., Fourth Circuit, 133 Fed. Rep. 717.

17. BANKRUPTCY Effect where Ordinance Requires City Employees to Pay Debts.-A bankrupt city fireman held entitled to a stay of proceedings looking to his removal for non-payment of a debt, as required by the city's ordinances and fire regulations, pending his discharge in bankruptcy, in which the debt was dischargeable. In re Hicks, U. S. D. C., N. D. N. Y., 133 Fed. Rep. 739.

18. BANKRUPTCY-Examination of Secured Creditor.A secured creditor of a bankrupt, examined as a witness before a referee, held entitled to have the proceedings reviewed before a judge of the court under General Bankruptcy Order 27.-In re Abbey Press, U. S. C. C. of App., Second Circuit, 134 Fed. Rep. 51.

19. BANKRUPTCY - Exemptions Under State Law.-A bankrupt is entitled only to such exemptions as he would be entitled to if proceeded against under the state law.In re Wunder, U. S. D. C., E. D. Pa., 133 Fed. Rep. 821.

20. BANKRUPTCY-Failure to Record Conditional Sale. -The holder of an unrecorded conditional sale to a bankrupt, though entitled to priority as against prior creditors, is subordinated to the claims of subsequent creditors without notice, though without a lien other than the caveat afforded by the bankruptcy adjudication.-In re Ducker, U. S. D. C., W. D. Ky ., 133 Fed. Rep.

771.

21. BANKRUPTCY-Form of Filing Objection to Claim. -While, as a rule, objections to a claim by a trustee should be filed in writing prior to the hearing thereon, such practice is not imperative, and an oral statement of the objections may be permitted by the referee, in his discretion. In re Cannon, U. S. D. C., E. D. Pa., 133 Fed. Rep. 837.

22. BANKRUPTCY Fraudulent Conveyance. - Under Gen. Laws 1896, ch. 202, §1, conveyance fraudulent as to grantor is void from moment it is first found to obstruct the prosecution of the creditor's demand, as from the service of attachment.-Tucker v. Denico, R. I., 59 Atl. Rep. 920.

23. BANKRUPTCY-Gift to Wife. -Gifts made by a voluntary bankrupt to his wife in contemplation of bankruptcy held voidable in a suit by the bankrupt's trustee. -Wiley v. McBride, Ark., 85 S. W. Rep. 84.

24. BANKRUPTCY-Insurance Policies.-Where it ap peared that certain policies on the life of a member of a bankrupt firm, were pledged by the firm, it would not be assumed that the firm had no interest in such policies. In re Mertens, U. S. D. C., N. D. N. Y., 134 Fed. Rep. 101.

25. BANKRUPTCY-Laches in Objecting to an Allowed Claim. A certificate to review the allowance of a claim against a bankrupt, or the referee's order refusing to expunge the claim, not filed until more than six months had elapsed after the claim was allowed, held barred by delay. In re Milgraum & Ost, U. S. D. C., E. D. Pa., 133 Fed. Rep. 802.

26. BANKRUPTCY-National Bank.-Where plaintiff deposited $80 with a bank at about 12 o'clock, when the bank was insolvent, and it closed its doors at about 2 o'clock, held, that it would be presumed that he was entitled to have his claim paid in preference to the general creditors. Willoughby v. Weinberger, Okla., 79 Pac. Rep. 777.

27. BANKRUPTCY -Negotiable Papers.-The holders of notes executed by a bankrupt could not after his discharge, sue on them, on the ground that they were not released by the discharge, because given for money misappropriated by the maker.-Delta County Bank v. McGranahan, Wash., 79 Pac. Rep. 796.

29. BANKRUPTCY-Preferences.-An order given by a contractor on a railroad which owed him money and which was not presented until the day before the contractor, being insolvent, filed a petition in bankruptcy, held not to take effect as a transfer until the date of its presentation, and to constitute a preference.-Johns. ton v. Huff, Andrews & Moyler Co., U. S. C. C. of App., Fourth Circuit, 133 Fed. Rep. 704.

30. BANKRUPTCY-Provable Claims.-Creditors of bankrupts, who advanced them money on the strength of fraudulent rerepresentations, held entitled to recover the same, although they knew and intended that the money advanced should be used in a gambling venture. -In re E. J. Arnold & Co., U. S. D. C., E. D. Mo., 133 Fed. Rep. 789.

31. BANKRUPTCY-Right of Trustee to Leased Premises. -A tenant's trustee in bankruptcy held entitled to the premises under the tenant's lease, where the landlord took no steps to regain possession prior to the bankrupt's adjudication.-In re Adams, U. S. D. C., D. Conn., 134 Fed. Rep. 142.

32. BANKRUPTCY-Staying Proceedings in Distress for Rent. Where, after distress by a landlord, the tenant is adjudicated a bankrupt, the necessary effect is to put the property under the control of the bankruptcy court, which will stay further proceedings with the distress, and require the landlord to submit his rights to that court for adjudication.-In re Lines, U. S. D. C., M. D. Pa., 133 Fed. Rep. 803.

33. BANKRUPTCY-Staying Proceedings in State Court. -A referee has no power to grant an injunction staying proceedings against a bankrupt in a state court, and such an order is void.-In re Siebert., U. S. D. C., D. N. J., 133 Fed. Rep. 781.

34. BANKRUPTCY-Sufficiency of Petition in Involuntary Proceedings.-Petitioning creditors are bound to as full disclosure in their petition in respect to the acts of bankruptcy charged, as their information enables them to make, supplemented by an explanation of its lack of completeness, so far as it may be thus lacking, and their case must thus rest on something more than rumor, or vague hearsay, or mere suspicion.-In re Blumberg, U. S. D. C., E. D. Pa., 133 Fed. Rep. 845.

35. BANKRUPTCY-Time for Filing Petition for Discharge. It is no part of the duty of a referee in bankruptcy to notify the bankrupt, or his attorney, of the date of expiration of the time when the petition for discharge must be filed.-In re Knauer, U. S. D. C., N. D. Iowa, 133 Fed. Rep. 805.

36. BANKRUPTCY-Trading Pursuits. A corporation engaged in the business of soliciting advertisements and placing them in newspapers at rates previously obtained from such papers is not engaged in a trading pursuit and cannot be adjudged an involuntary bankrupt thereunder.-In re Snyder & Johnson Co., U. S. D. C., N. D. III., 133 Fed. Rep. 806.

37. BANKRUPTCY-Transfer of Proceedings.-A court of bankruptcy having granted a petition to remove bankruptcy proceedings pending therein to a court of bankruptcy sitting in another state, error, if any, in determining whether the court of such state had jurisdiction, was not reviewable on the writ to review an order denying an application to vacate the removal order.-Kyle Lumber Co. v. Bush, U. S. C. C. of App., Fifth Circuit, 133 Fed. Rep. 688.

--

38. BANKRUPTCY Trustee's Title to Books and Papers -Under the express provisions of Bankr. Act, ch. 541, §1, el. 13, and sec. 70, cl. 1, the bankrupt's trustee is vested by operation of law with title to all the bankrupt's books, papers, contracts, securities, etc, relating to his business.-In re Hess, U. S. D. C., M. D. Pa., 134 Fed. Rep. 109.

39. BANKRUPTCY-Unsealed Subpoena.-Where a witness was present before a referee in bankruptcy when an order for his examination was made, it was immaterial that the subpoena issued for his appearance was

unsealed. - In re Abbey Press, U. S. C. C. of App., Second Circuit, 134 Fed. Rep. 51.

40. BILLS AND NOTES-Defenses Against Assignor.One who purchases for value the obligation of a debtor, and obtains the latter's note payable to himself with knowledge of the facts, takes the note subject to the defenses existing in the hands of the original creditor.Williams v. Neely, U. S. C. C. of App., Eighth Circuit, 134 Fed. Rep. 1.

41. BILLS AND NOTES-Duress of Wife. In an action on notes against husband and wife, evidence held to sustain a finding that the wife signed the notes under duress.-Delta County Bank v. McGranahan, Wash., 79 Pac. Rep. 796.

42. BILLS AND NOTES-Liability of Joint Maker.-The payee of a joint and several note may look to either of the joint makers, and, where one of them dies is not compelled to pursue his remedy against the estate of the deceased.-Newhall v. Field, N. Mex, 79 Pac. Rep. 711. 43. BRIDGES-Breach of Contract, Estoppel.-The use of a bridge by the public is not a waiver of the right of the contract in its construction. - Modern Steel Structural Co. v. Van Buren County, Iowa, 102 N. W. Rep. 536. 44. BURGLARY-Chicken House.-Raising the latch of and opening a chicken house door, thereby effecting an entrance, held a sufficient breaking. - Abrams v. Commonwealth, Ky., 85 S. W. Rep. 173.

45. CARRIERS-Carriage in Private Vehicle.-There is no presumption that a person riding in a private vehicle of another is being carried as a passenger for hire, as would be the case if the owner of the vehicle were a common carrier of passengers; and an allegation of such fact in a pleading must be sustained by proof Lydon v. Robert Smith Ale Brewing Co., U. S C. C., E. D. Pa., 133 Fed. Rep. 830.

46. CARRIERS-Contract of Carriage.-The contract of a carrier is not complied with until the goods are delivered at the station or warehouse where such goods are usually unloaded and delivered.-Loeb v. Wabash Ry. Co., Mo., 85 S. W. Rep. 118.

47. CARRIERS-Excessive Damages.-Where a woman passenger was frightened by drunken men while on the platform of defendant's car, a verdict for $900 held not so excessive as to indicate passion or prejudice.-Cincinnati, N. O. & T. P. Ry. Co. v. Taylor, Ky., 85 S. W. Rep. 168.

48. CARRIERS-Failure to Water Stock.-In an action against a railroad for injury to stock in transit, it will be assumed that the railroad's employees did their duty in watering the stock.-Peterson v. Chicago, M. & St. P. Ry. Co., S. Dak., 102 N. W. Rep. 595.

49. CARRIERS-Injury to Passenger While Alighting.In an action against a carrier for injuries to a passenger by the starting of the train while he was alighting, a modification of an instruction 80 as to require the carrier to give a sufficient opportunity to alight held not error.-Barringer v. St. Louis, 1. M. & S. Ry. Co., Ark., 85 S. W. Rep. 94.

50. CARRIERS-Negligent Starting. The starting of a street car before a passenger has landed securely on the platform is negligence.-Lehner v. Metropolitan St. Ry. Co., Mo., 85 S. W. Rep. 110.

51. CARRIERS-Round Trip Ticket.-A passenger held to have a right to return on a round trip ticket, though the agent had refused to stamp and sign the ticket as required thereby.-Ft. Worth & R. G. Ry. Co. v. Jones, Tex., 85 S. W. Rep. 37.

52. CHATTEL MORTGAGES-Failure to Record.—That a chattel mortgage is unrecorded, and that the mortgagee has suffered more than the statutory period after default to elapse before taking possesion, does not entitle a bailee to retain it.-Fischback v. Garrison Milling & Elevator Co., Colo., 79 Pac. Rep. 749.

53. COLLISION-Excessive Speed in Fog.-Six knots is an excessive speed for a steamship in a thick fog in a frequented part of the ocean, and charges the ship with

fault where a collision occurs.-In re Clyde S. S. Co., U. S. D. C., S. D. N. Y., 134 Fed. Rep. 95.

54. COLLISION-Vessel Breaking from Moorings. - To establish the defense of inevitable accident in a suit for collision, the respondent has the burden of proving that the collision resulted from a cause against which human skill and foresight could not have provided in the exercise of ordinary prudence.-The Drumcraig, U. S. D. C., N. D. Cal., 133 Fed. Rep. 804.

55. CONSTITUTIONAL LAW-Changes in Judge's Salary During Term.-The state treasurer has such discretion ary powers as authorize him to call in question the constitutionality of Act April 14, 1903 (P. L. 175), relating to the salaries of judges, by refusing to pay warrants drawn on him, so as to secure judicial interpretation of the statute. - Commonwealth v. Mathues, Pa., 59 Atl. Rep. 961.

56. CONSTITUTIONAL LAW-Powers of State Board of Land Commissioners.-Mills' Ann. St. § 3637, giving the state board of land commissioners power to cancelleases obtained by fraud, held not repugnant to Const. art. 6, § 1.-American Sulphur & Mining Co. v. Brennan, Colo., 79 Pac. Rep. 750.

57. CONSTITUTIONAL LAW-Practice of Medicine Without License.-Sess. Laws 1903, p. 61, ch. 40, forbidding the practice of medicine without a license, is not class legislation, within Const. U. S. Amend. 14.-Territory v. Newman, N. Mex., 79 Pac. Rep. 706.

Where a party

58. CONTRACTS-Induced by Fraud. occupying a relation of trust toward another contracts with him without disclosing his exclusive knowledge of the latter's rights, the contract will be avoided.-Boren v. Boren, Tex., 85 S. W. Rep. 48.

59. CORPORATIONS- Sale of Treasury Stock.-A decree canceling the sale of corporate treasury stock to directors held bad for failing to require the corporation to do equity.-Mosher v. Sinnott, Colo., 79 Pac. Rep. 742.

60 COSTS-Where no Argument is Made.- Where an appeal is by agreement submitted upon the brief in another action, and no argument is made, no costs can be taxed for argument.-Nichols v. Smith, S. Dak., 102 N. W. Rep. 606.

61. COURTS-Supreme Courts-Disqualification by Majority. Where a majority of the judges of the supreme court declined to sit because of personal interest in the result, the powers of the court devolve on the remaining judges.-Commonwealth v. Mathues, Pa., 59 Atl. Rep

961.

62. COVENANTS-Pleading.-The defense to an action for breach of warranty that the interest in the land of a third person had been cut off by his discharge in bankruptcy is not available, unless pleaded.-Cates v. Field, Tex., 85 S. W. Rep. 52.

63. CRIMINAL TRIAL-Certificate of Case-Made.-A certificate to a case made as an authentication by the acting judge, during the absence of the regular judge, held a sufficient authentication. Hill v. Territory, Okla., 79 Pac. Rep. 757.

65. CRIMINAL TRIAL Setting Aside Conviction. - A conviction will not be set aside, after denial of a new trial, unless, assuming all that is testified to be true, the presumption of innocence is not overcome.-Harmon v. Territory, Okla., 79 Pac. Rep. 765.

66. CRIMINAL TRIAL- Transfer to County Court. Where a criminal case is transferred from the district to the county court, the transcript need not show the date the district court adjourned.-Cantwell v. State, Tex., 85 S. W. Rep. 18.

67. CRIMINAL TRIAL-Weight of Evidence.-The cour on appeal will not reverse a conviction because the greater number of witnesses have testified favorably to defendant.-Howard v. Territory, Okla., 79 Pac. Rep. 773

68. CRIMINAL TRIAL-Withdrawal of Plea to File Demurrer -A plea of not guilty, withdrawn to file a demurrer, held not reinstated by the overruling of the demurrer and the participation of the defendant without objection in the trial.-Territory v. Gonzales, N. Mex., 79 Pac. Rep. 705.

69. DAMAGES-Personal Injuries-Physician's Bills.-In an action for personal injuries, evidence as to bills of plaintiff's physicians held inadmissible, in the absence of evidence as to the value of the services or payment.Klingaman v. Fish & Hunter Co., S. Dak., 102 N. W. Rep.

601.

70. DAMAGES Proof Where Specific Injuries are Pleaded.-In an action for personal injuries, where particular injuries resulting from the principal one are alleged, all that are designed to be proved should be stated.-Arnold v. City of Maryville, Mo., 85 S. W. Rep.

107.

71. DAMAGES-Value of Animals Killed by Railroad.Where three of plaintiff's animals were killed, and three were injured, testimony merely as to the value of the animals killed and injured is too indefinite on which to enter judgment.-Carman v. Montana Cent. Ry. Co., Mont., 79 Pac. Rep. 690.

72. DEEDS-Conditions Subsequent.-A grantee's covenant to pay taxes on the land was not a condition subsequent, for a breach of which the grantor could reenter.-Burgson v. Jacobson, Wis., 102 N. W. Rep. 563.

73. DEPOSITIONS-Admissibility.-The deposition of a witness living within twenty miles of the courthouse cannot be admitted, unless he is physically unable to attend, or some other reason is shown which, under the Code, inakes the deposition admissible -Smith v. Park's Admr., Ky., 84 S. W. Rep. 1167.

74. DESCENT AND DISTRIBUTION-Liability of Distributees for Contingent Claim.-Where a claim against a decedent's estate did not become absolute until after the estate had been closed, the creditor was entitled to recover against the distributees in equity, though the claim was not filed in probate proceedings.-Rankin v. City of Big Rapids, U. S. C. C. of App., Sixth Circuit, 133 Fed. Rep. 670.

75. DIVORCE - Grounds.-Though complainant may have been misled by the false statement of defendant that he had never been married, if their marriage was valid by the law of the land, it could not be annulled because invalid by the law of the church. - Boehs v Hanger, N. J., 59 Atl. Rep. 904.

76. DOWER-Assignment by County Court.-The county court has jurisdiction to assign dower only when the right is not disputed by the heirs and devisees, or any porsons claiming under them.-Swobe v. Marsh, Neb., 102 N. W. Rep. 619.

77. DRUGGISTS-Civil Liability for Sale of Poisons.Administrator of a deceased person held entitled to recover against a druggist for violation of St. 1903, § 2630, as to sales of poison, causing decedent's death, under section 466, though the violation of section 2630 constituted a criminal offense.-Sutton's Admr. v. Wood, Ky., 85 S. W. Rep. 201.

78. EASEMENTS-Burden of Proof.-Where a passway has been used for 15 years, held, the one denying that the use was adverse has the burden of showing it was permissive.-Chenault v. Gravitt, Ky., 85 S. W. Rep. 184. 79. EASEMENTS-Parties.-An easement claimed on lands in possession of defendants cannot be adjudged in a suit in which the owner is not a party.-Campbell v. Flannery, Mont., 79 Pac. Rep. 702.

80. EASEMENTS-Right to Change Tramway to Steam Railway.-A conveyance of a right of way for a wooden tramway did not authorize the grantee's successors in interest to use the same for a steam railway.-Warren & O V. R. Co. v. Garrison, Ark., $5 S. W. Rep. 81.

81. EASEMENTS-Temporary Change as Constituting Adverse User.-Right to use a passway held not lost by temporary change with consent of the one having the

right to use it.-Chenault v. Gavitt, Ky., 85 S. W. Rep.

184.

82. EASEMENTS-Use of Way-Presumptions.-A continuous and uninterrupted use of a passway for more than 15 years creates a presumption that such use was as a matter of right and adverse.-Warth v. Baldwin, Ky., 84 S. W. Rep. 1148.

83. EASEMENTS-Way of Necessity.-User of a roadway across defendant's land to a highway by the owners of certain landlocked land held to entitle them to an easement in such use by prescription.-Van de Vanter v. Flaherty, Wash., 79 Pac. Rep. 794.

84. ELECTRICITY-Duty to Properly Insulate Wires An electric light company is bound to exercise the ntmost degree of care in keeping its wires properly insu lated to prevent injuries to persons coming in contact therewith. Winkelman v. Kansas City Electric Light Co., Mo., 85 S. W. Rep. 99.

85. ESTOPPEL-Easement.-Where an owner of land subject to a tramway easement permitted defendant to construct a railroad over the same, she was estopped to maintain ejectment.-Warren & O. V. R. Co. v. Garrison, Ark., 85 S. W. Rep. 81.

86. EVIDENCE-Husband and Wife After Divorce.Where a husband and wife have been divorced, testimony of the former tending to uphold a transfer by him to the latter against claims of his creditors held not open to suspicion.-Davis v. Yonge, Ark., 85 S. W. Rep. 90.

87. EVIDENCE-Hypothetical Questions.-In asking a hypothetical question of an expert witness, the facts proved must be taken as the basis for the hypothesis.Carman v. Montana Cent. Ry. Co., Mont., 79 Pac Rep. 690.

88. EVIDENCE-Inference from Failure to Call Attending Physician. Under Rev. St. 1899, § 4659, relating to privileged communications, no unfavorable inference should be drawn from failure of plaintiff in an action for personal injuries to call his physician.-Arnold v. City of Maryville, Mo., 85 S. W. Rep. 107.

89. EVIDENCE-Ownership of Railroad.-On an issue as to whether defendant corporation owned a certain railroad, the statement of defendant's station agent that it did not was inadmissible.-Black v. St. Louis & S. F. R. Co., Mo., 85 S. W. Rep. 96.

90. EVIDENCE-Refreshing Memory from Records.-On a prosecution for a violation of the local option law, it was proper to permit a witness to refer to his express books to refresh his memory as to what was done as to the package in question.-Cantwell v. State, Tex., 85 S. W. Rep. 19.

91. EVIDENCE-Unauthenticated Summons.-A summons purporting to have been issued by a justice, but not in any way authenticated or certified, is inadmissible in evidence.--Chapman v. Duffy, Colo., 79 Pac. Rep. 746.

92. EXECUTION-Suit to Set Aside Sale.-In a suit by a wife to set aside a sale, on execution against her husband, of property title to which was in her name, evidence held to make a prima facie case for her.- Davis v. Yonge, Ark, 85 S. W. Rep. 90.

93. EXECUTORS AND ADMINISTRATORS-Devolution of Rents Accrued at Lessor's Death.-Rents which accrued during the lifetime of the lessor are personal property, and go to his personal representatives, and rents accruing after his death go to the heirs or devisees.-Broadwell v. Banks, U. S. C. C., D. Mo., 133 Fed. Rep. 470.

94. EXECUTORS AND ADMINISTRATORS-Failure to File Contingent Claim.-A contingent claim against a deced ent's estate, which did not become absolute until after final distribution, held not barred by the creditor's failure to file it in the probate proceedings under Comp. Laws Mich. §§ 9411-9416, 9380.-Rankin v. City of Big Rapids, U. S. C. C. of App., Sixth Circuit, 133 Fed. Rep. 670. 95. FEDERAL COURTS-Co-Ordinate Jurisdiction.-The court which first acquires jurisdiction of specific property in a suit to enforce a lien retains jurisdiction until the end, free from interference of any co-ordinate juris

diction.-Williams v. Neely, U. S. C. C. of App., Eighth Circuit, 134 Fed Rep. 1.

96. FEDERAL COURTS-Rights of Persons Beneficially Interested in Judgment.-The court will protect a party interested in the judgment to be obtained in a suit, and who has control of the same by counsel, against any unjust discharge by the plaintiff of record and party interested in the remainder of the judgment.-Sowles v. First Nat. Bank, U. S. C. C., D. Ver., 133 Fed. Rep. 846.

97. FIRE INSURANCE-Limitation of Agent's Authority. -A clause in an application for insurance, printed in very small type, and containing a limitation of the au thority of the agent, is insufficient to impart to the applicant notice of such limitation.-Foster v. Pioneer Mut. Ins. Ass'n, Wash., 79 Pac. Rep. 798.

98. FRAUDULENT CONVEYANCES-Husband and Wife.A bill in equity is the proper remedy to reach the interest of an insolvent husband in land in his wife's name. - Delo v. Johnson, Mo., 85 S. W. Rep. 109.

99. FRAUDULENT CONVEYANCES-Remedies of Creditors. Where a judgment is procured before a sale of land by the judgment debtor, the judgment creditor has a remedy at law, and equity has no jurisdiction to reach the proceeds of the sale.-Davis v. Yonge, Ark., 85 S. W. Rep. 90.

100. FRAUDULENT CONVEYANCES-Subsequent Creditors. In the absence of actual fraud, a deed transferring real estate cannot be attacked by creditors whose debts arose after the transfer is made.-Ilfeld v. De Baca, N. Mex., 79 Pac. Rep. 723.

101. GAMING-Procuring Money by Fraud. - Persons who obtain money from depositors by false representations take no title as against the depositor, who may recover the same at law.-In re E. J. Arnold & Co., U. S. D. C., E. D. Mo., 133 Fed. Rep. 789.

102. GUARDIAN AND WARD-Effect of Ward's Death.-A guardianship held terminated by the death of the ward, the guardian's subsequent duty being simply to account to the probate court.-State Fair Ass'n v. Terry, Ark., 85 S. W. Rep. 87.

103. HABEAS CORPUS Judgment Nunc Pro Tunc.Where petitioner in habeas corpus is legally in custody, it is immaterial when the officer got his authority to hold him.-Ex parte Dye, Mont., 79 Pac. Rep. 689.

104. HABEAS CORPUS-Power of Federal Court.-The power of the federal courts to discharge prisoners restrained in violation of the constitution of the United States under judgments of state courts should not be exercised, where such judgments are reviewable by appeal or by writ of error.-In re Dowd, U. S. C. C., D. Colo., 133 Fed. Rep. 747.

105. HOMESTEAD-Removal of Owner.-A homestead held not to have lost its character as such by the owner's removal to the homestead of his wife and residing there with her.-Canning v. Andrews, Tex., 85 S. W. Rep. 22.

106. HOMICIDE- Adultery as a Mitigating Circumstance. Whether adulterous relations of deceased and defendant's wife created in defendant an emotional insanity, or whether it merely reduced the homicide to manslaughter, held a question for the jury.-Shepherd V. Commonwealth, Ky., 85 S. W. Rep. 191.

107. HOMICIDE- Assault with Intent to Murder. Where one shoots to kill because of an insult to his sis er, in order to reduce the offense to aggravated assault, the assault must not only have been the actuating cause, but defendant's mind must have been excited and incapable of cool reflection.-Jones v. State, Tex., 85 S. W. Rep. 5.

108. HOMICIDE-Instructions as to Justifiable Manslaughter. It is error to instruct that the killing of a human being with a dangerous weapon is murder in the second degree, unless the jury believe that the killing was without malice in fact.-Territory v. Gutierez, N. Mex., 79 Pac. Rep. 716.

103. HUSBAND AND WIFE-Wife's Lien on Property of Husband.-A wife has a tacit lien on the property of her

husband, to the amount of her total property and the separate property acquired by lucrative title and which came into his possession during coverture.-Ilfeld v. De Baca, N. Mex., 79 Pac. Rep. 723.

110. INDIANS-Accounting by Guardian.-The validity of an agreement entered into by Indian before guardianship, involved in proceedings compromised by the guardian under order of the court, will not be considered on objections to final accounting. - Terry v. Sicade, Wash., 79 Pac. Rep. 789.

111. INDICTMENT AND INFORMATION- Amendment.Where an information charges an assault with "knives and clubs," an amendment by adding "and an umbrella" was authorized by Code Cr. Proc. § 72.-State v. Johnson, Kan., 79 Pac. Rep. 732.

112. INDICTMENT AND INFORMATION-Order by Attorney General to Prosecute Criminal Proceedings. - The district court of any county is obliged to take judicial notice of an executive order on the attorney general to prosecute criminal proceedings therein. - State v. Bowles, Kan., 79 Pac. Rep. 726.

113. INFANTS-Avoidance of Contract by Adult.-An adult, dealing with an infant, cannot avail himself of the latter's infancy in order to defeat his own liability on the contract.-Chapman v. Duffy, Colo., 79 Pac. Rep. 746. 114. INTOXICATING LIQUORS-Application for License.That an application for a liquor license, in describing the place of business, included two separate places, did not preclude a recovery in an action on the bond.-Cox v. Thompson, Tex., 85 S. W. Rep. 35.

115. INTOXICATING LIQUORS - Local Option Election.— It was competent for the commissioners' court to order a local option election in a county, irrespective of the status of some of the precincts as to local option.Cantwell v. State, Tex., 85 S. W. Rep. 19.

116. INTOXICATING LIQUORS-Rescission of Sale.-In a prosecution for violating the local option law, refusal to charge that, if defendant returned the money given him in payment of whisky to be delivered, there was no sale, held error.-White v. State, Tex., 95 S. W. Rep. 9 117. INTOXICATING LIQUORS-Violation of Local Option Law.-On a prosecution for a violation of the local option law, it was immaterial whether the court instructed the jury that the local option law was in force in the county, or assumed in the charge that it was in effect.-Cantwell v. State, Tex., 85 S. W. Rep. 19.

118. JOINT-STOCK COMPANIES Rights of Stockholders. A stockholder of a joint-stock association held not precluded from purchasing certain of the association's real estate for taxes by reason of the fact that he was a party to a suit to dissolve the association. — Randolph v. Nichol, Ark., 84 S. W. Rep. 1037.

119. JUDGMENT-Invalid Foreclosure. Where a foreclosure is invalid, and the purchaser at foreclosure brings a second action he must prove the existence of the lien, and the judgment in the first proceeding is not competent for that purpose.-Stough v. Badger Lumber Co., Kan., 79 Pac. Rep. 737.

120. JUDGMENT-Irregularities Preceding Judgment.Where a court has jurisdiction of the subject-matter and of the parties, irregularities in the proceedings will not render the judgment void.-Smith v. Finger, Okla., 79 Pac. Rep. 759.

121. JUDGMENT-Res Judicata.-A judgment rendered on the merits by a court of competent jurisdiction bars subsequent litigation between the same parties or their privies on the same cause of action. Bedford-Bowling Green Stone Co. v. Oman, U. S. C. C., W. D. Ky., 134 Fed. Rep. 441.

122. JUDGMENT-Setting Aside for Fraud.-A judgment or decree may not be set aside for fraud, unless it be extrinsic or collateral to the questions determined in the action in which the judgment was rendered.-Keith v. Alger, Tenn., 83 S. W. Rep. 71.

123. JUSTICES OF THE PEACE-Jurisdiction.-Where a justice of the peace had no jurisdiction of the subject,